[1] This judgment deals with an
application for admission as amicus curiae by Professor Mhlongo (the applicant)
and an application
by Cotlands Baby Sanctuary (Cotlands), one of the
amici, to adduce further evidence in an appeal by the government against
orders made against it in the High Court. These applications were
made at the
commencement of the appeal proceedings and were refused. We intimated that we
would furnish our reasons later. These
are our reasons.

The amicus
curiae application[2] On the morning of the first day of the hearing
Professor Mhlongo, head of the Department of Medicine and Primary Health Care
at
the Medical University of South Africa, applied to be admitted as amicus for the
purpose of presenting certain new evidence.
This related to two aspects,
namely, first, the circumstances and implications of the withdrawal by the
manufacturers of an application
to licence nevirapine in the United States of
America for the prevention of mother-to-child transmission of HIV; and second,
evidence
challenging the scientific integrity of the method, the conclusions and
the recommendations of the clinical trial that led to the
approval of nevirapine
for such use.

[3] A person may be admitted as an amicus either on the
basis of the written consent of all the parties in the
proceedings[1] or on the basis of an
application addressed to the Chief
Justice.[2] In the latter event
admission is entirely in the discretion of the Court. In the exercise of that
discretion the Court will consider
whether the submissions sought to be advanced
by the amicus will give the Court assistance it would not otherwise enjoy. The
requirements
for admission as an amicus are set out in Rule 9 and, as this Court
pointed out in Fose v Minister of Safety and
Security:[3]

“It is clear from the provisions of Rule 9 that the underlying principles
governing the admission of an amicus in any given case, apart from the
fact that it must have an interest in the proceedings, are whether the
submissions to be advanced
by the amicus are relevant to the proceedings
and raise new contentions which may be useful to the Court. The fact that a
person or body has,
pursuant to Rule 9(1), obtained the written consent of all
parties does not detract from these principles; nor does it diminish the
Court's
control over the participation of the amicus in the proceedings, because
in terms of subrule (3) the terms, conditions, rights and privileges agreed upon
between the parties
and the person seeking amicus status are subject to
amendment by the [Chief Justice].” (Footnotes
omitted.)

To this we would add that the application for
amicus status must be made timeously and, failing that, condonation must be
sought without
delay.

[4] In an application for leave to appeal an
amicus wishing to be admitted with the leave of the Chief Justice, must apply
for admission
within 10 days after the application for leave to appeal has been
lodged with the Registrar of this Court. Where this is not possible,
an
application for condonation must be made as soon as possible. Here the
application for leave to appeal was lodged on 8 January
2002 and the application
for admission as amicus was made on 2 May 2002, when condonation was first
mentioned.

[5] The role of an amicus is to draw the attention of the
court to relevant matters of law and fact to which attention would not
otherwise
be drawn. In return for the privilege of participating in the proceedings
without having to qualify as a party, an amicus
has a special duty to the court.
That duty is to provide cogent and helpful submissions that assist the court.
The amicus must not
repeat arguments already made but must raise new
contentions; and generally these new contentions must be raised on the data
already
before the court. Ordinarily it is inappropriate for an amicus to try
to introduce new contentions based on fresh evidence.

[6] The
applicant’s purpose in seeking admission as an amicus was to enable him to
challenge the scientific integrity of the
clinical trial that led to the
approval by the Medicines Control Council of nevirapine for the prevention of
mother-to-child transmission
of HIV. The applicant wanted to introduce a
substantial body of new evidence in support of a challenge to the decision of
the Council
to approve the use of nevirapine for this purpose. The evidence was
untested and the submissions based on it would have opened an
entirely new issue
on appeal. It was therefore inappropriate for the amicus belatedly to try to
introduce the challenge to the approval
of nevirapine as a new issue in the
case.

[7] Moreover, allowing the applicant to raise this new issue on
the first day of a protracted hearing would have been both disruptive
and
prejudicial to the parties. It would have necessitated the postponement of an
otherwise urgent matter and inevitable delay in
resolving a matter that required
urgent attention. It would therefore not have been in the interests of justice
to admit the applicant
as an amicus in these circumstances. That is why the
application was
refused.[4]

Application by
Cotlands to adduce further evidence[8] Cotlands was admitted as an
amicus. It then sought leave to place certain evidence before the Court in
terms of Rule 30.[5] That rule
permits a duly admitted amicus “to canvass factual material which is
relevant to the determination of the issues
before the Court and which do not
specifically appear on the record”. However, this is subject to the
condition that such
facts “are common cause or otherwise
incontrovertible” or “are of an official, scientific, technical or
statistical
nature, capable of easy verification.” This rule has no
application where the facts sought to be canvassed are disputed.
A dispute as
to the facts may and, if genuine, usually will demonstrate that they are not
“incontrovertible” or “capable
or easy verification.”
Where this is so, the material will be
inadmissible.[6]

[9] Accepting
that there is some evidence of this nature on the record, Cotlands wanted to
present more specific evidence of the
circumstances in which HIV-positive
children live and die. Such evidence is not irrelevant, although the case was
fundamentally
about the constitutional right to health care, in particular, the
reduction of mother-to-child transmission of HIV. While the proposed
evidence
might have been useful in educating the Court about such conditions, the
evidence on record was sufficient for it to understand
the plight of children
living with HIV/AIDS. For the Court to determine these issues it needed no
further evidence of the living
conditions of HIV children.

[10] Apart
from the aforegoing, in its letter opposing the admission of Cotlands as an
amicus, government had pointed out that the
evidence sought to be led might not
be incontrovertible and that having regard to the late stage at which the
application was made,
it would not have sufficient time properly and effectively
to respond to the new evidence. Admission of the new evidence might well
have
opened up a new area of dispute on an issue which was not strictly germane to
the issues before the Court.

[11] For these reasons the application to
adduce further evidence was refused.

Chaskalson CJ Langa DCJ Ackermann J Du Plessis AJ

Goldstone J Kriegler J Madala J Ngcobo J

O’Regan J Sachs J Skweyiya AJ

For the Applicant: M Khoza

For the Third Amicus Curiae: S Cowen instructed by the Wits Law Clinic,
Johannesburg

[4] An application by the
Clinicians Discussion Forum made on 26 April 2002 was also refused as it was out
of time and an attempt was
made to introduce new evidence at a very late stage
of the hearing.[5] Rule 30(1) of
the Constitutional Court Rules provides that:

“Any party to any proceedings before the Court and an amicus curiae
properly admitted by the Court in any proceedings shall be entitled, in
documents lodged with the registrar in terms of these rules,
to canvass factual
material which is relevant to the determination of the issues before the Court
and which do not specifically appear
on the record: Provided that such facts
–

(a) are common cause or otherwise incontrovertible; or
(b) are of an official, scientific, technical or statistical nature, capable of
easy
verification.”